Goh Shan Chin (m.w.) v Tay Peng Sim

• Jurisdiction: Singapore
• Judge: Lim Hui Min
• Judgment Date: 18 December 2002
• Neutral Citation: [2002] SGDC 350
• Plaintiff Counsel: Mr Ong Beng Leong (M/s Ong Beng Leong & Co)
• Published date: 16 January 2004
• Court: District Court (Singapore)
• Defendant Counsel: Mr Nicholas Cheong (M/s Lim Soo Peng & Co)
• Subject Matter: Family Law,Application for security for costs by wife petitioner

Judgment

1. The Petitioner in the above petition has applied by way of Summons-in-Chambers No. 652282 of 2002 (“the SIC”) for security for costs against the Respondent. I have decided to dismiss the application, and set out my reasons below.

Introduction

2. The Divorce Petition had been filed on 6 August 2002, and served on 17 August 2002. The Respondent had entered appearance in the matter on 8 October 2002, stating that he intended to contest the Petition. He filed his Answer on 22 October 2002. The SIC was filed on 1 November 2002. No supporting affidavit was filed, but the SIC contained a statement stating that the grounds of the application were that the Respondent is a bankrupt. Although the Respondent’s counsel had stated that the Petitioner should have filed an affidavit to present evidence of the Respondent’s bankruptcy, the fact that the Respondent is a bankrupt has not been directly disputed by the Respondent’s counsel. I have therefore accepted that the Respondent is indeed a bankrupt.

Procedural Defaults

3. I do note, however, that an application for security for costs (under Order 23 of the Rules of Court) should ordinarily be supported by an affidavit. The Petitioner’s failure to file an affidavit in this matter has meant that the Petitioner is unable to rely on anything except the fact of the Respondent’s bankruptcy in support of her application.

4. The summons or affidavit should also indicate the amount of security required and a skeleton bill of costs should be prepared to show that amount is made up. (See page 257, Halsbury’s Laws of Singapore, Volume 4, Civil Procedure) None of this had been done by the Petitioner’s counsel, who merely made an oral submission that the amount of security ordered should be $5000. It is my view that similar practices should be applicable to Rule 48 of the Matrimonial Proceedings Rules, which is the rule under which this application was taken out. However, this is an issue which would only have been relevant if I had granted the application for security for costs and proceeded to decide on the quantum of such security. There is therefore no necessity to dwell on this any further.

Application for Security for Costs—Principles Applicable

5. Rule 48 of the Matrimonial Proceedings Rules allows a wife petitioner or respondent to apply for security for costs against the husband petitioner or respondent.

6. Under Order 23 of the Rules of Court, the court has the discretionary power to order security for costs if having regard to all the circumstances of the case, the court thinks it just to do so, but only under certain limited conditions, i.e.:

1) Where the plaintiff is ordinarily out of jurisdiction;

2) Where the plaintiff, not being a plaintiff who is suing in a representative capacity is a nominal plaintiff, who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so;

3) That the address of the plaintiff is not stated in the writ or other originating process, or is incorrectly stated there, unless the court is satisfied that the failure to state the address or the misstatement was made innocently and without intention to deceive; and

4) That the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation.

7. Thus, the applicant for security for costs (the defendant) must show that the plaintiff falls into one of the categories stated above. Secondly, he must then show that having regard to all the circumstances of the case, it is just for the courts to order security for costs. (See Amar Hoseen Mohammed Revai v. Singapore Airlines Limited [1995] 1 SLR 77, where it was stated “In exercising the discretion under O 23 r 1(1) the court must have regard to all the circumstances of the case. It is no longer an inflexible and rigid rule that a resident abroad should provide security for costs and security cannot now be ordered as a matter of course from a foreign plaintiff but only if the court thinks it just to order such security in the circumstances of the case.” Per KS Rajah JC (emphasis added)) The rationale for ordering security for costs is that a defendant may not be able to recover his costs from the plaintiff in the event that the latter fails in his action. The provision of security for costs ensures that a successful defendant will have a fund available within the jurisdiction against which he can enforce the judgment for costs. (See footnote one, at page 248, Halsbury’s Laws of Singapore, Volume 4, Civil Procedure)

8. Both counsel did not tender me any authorities regarding the scope and operation of Rule 48 of the Matrimonial Proceedings Rules, as they claimed they had been unable to find any. There was a direction by me to them to ascertain if there is a similar English rule in the matter. However, this was also, according to counsel, a fruitless exercise.

9. I have discovered that Canada has a rule for either spouse to apply for security for costs (see Rule 577.2 of the Alberta (Rules of Court), Canadian Divorce Law & Practice, 2^nd Edition, McDonald & Ferrier, at page AR-8, which states “The Court may at any time after a Statement of Claim has been served, and if necessary from time to time, make any order that it thinks fit for payment of or security for the costs of either spouse.”) The guiding principle for whether an order for security for costs should be made under the Canadian rule appears to be whether it is “just and reasonable”, considering “the history of the matter”. (See page 541, McDonald v. McDonald, 163 DLR (4^th) 527)

10. It is my view that Rule 48 of the Matrimonial Proceedings Rules...